Friday, October 2, 2015

The New TV: Streaming, Let's Plays, and How The Hell Is This Working?

I don't actually remember when let's plays and channels dedicated to playing video games while being funny about them started to be A Thing. I remember the really old text post let's plays from forum sites like Something Awful, but they were nothing like what we see now. I don't even want to guess what percentage of YouTube content consists of people recording themselves playing a game and posting the footage for other people to watch, but it's a full blown industry now! And the market is even bigger now that streaming services like Twitch (and Hitbox and YouTube Gaming, to a lesser extent) have made live broadcast something that anyone with enough processing power can do. We're going to need years to really wrap our brains around how big of an impact these things have had on the entertainment industry.

And I have no idea why they've been allowed to exist!

I say this as someone who hasn't regularly watched a non-football TV program in about five years (go Giants). The current structure of copyright and trademark law makes it seem impossible that these channels have not only lasted for so long, but have actually been allowed to flourish. If you had described this to me 10 years ago, I would have told you that there was no way YouTube users would be allowed to straight up post videos of the games they were playing and make money in the process. I didn't know much about copyright back then, but I would have been able to tell you that it had to be like if you tried to post an entire movie from start to finish. Fair use is one thing, but essentially uncut footage of a game that the developers would obviously much rather you buy than watch is another.

Well I've gone through law school now, done some research, read some academic texts about it and I still don't know how this trend wasn't smothered in the cradle by copyright holders. By now, people have built entire careers off of let's plays and presumably have a lot riding on those things not all being banned tomorrow, and that still seems very risky. The fair use doctrine is helpful, but if anyone tells you that they know exactly how a judge is going to review the facts of your case for fair use, they are lying. Not maliciously, but it's still a lie. We have pretty good ideas based on how fair use has been applied in the past, but every case has different facts. At best, we have an educated guess and what's scarier is that, once someone finally does have to go to court about this, a lawyer needs to know how to make a judge understand what's going on here and why the judge should consider it a fair use.

Have I mentioned that the average age for a person to begin their time as a federal judge is about 50? And that 12% of the judiciary is over the age of 80?

Another line of questions now: Have you tried to explain the popularity of let's play videos to someone over the age of 65? How glazed over were their eyes? Yeah I thought so.

So is this all going to fall apart tomorrow? Will entire sections of YouTube go soon dark, leaving only Maru videos and ASMR? Are we going to have to cross our fingers and hope Ruth Bader Ginsburg has a grandkid that's really into PewDiePie? I certainly don't know.

What I do know is that we have enough information in front of us to try and break this huge blob of uncertainty down into small, digestible parts that can help us find a way to make this all seem legit. I certainly don't want to go back to the bad old days where I had to care what was on actual TV.

Do you? Of course not. So welcome to New Media Month!